Activism is not a crime

By Prof. Dirk Voorhoof and Prof. Serge Gutwirth

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Feature story - 21 June, 2010

Non-governmental organisations and their activists play an active and essential role in representative democracies. Like journalists and other watchdogs of society, they are part of the vanguard against tyranny and their service to the political system, while often inconvenient to politicians, should not be underestimated. However, there is an increasing and disturbing trend to answer civil disobedience and peaceful protest with criminal prosecution, and using harsh, disproportionate punishments as a means of stifling dissent, and restricting freedom of expression.

Just looking at Greenpeace, an organisation that strictly adheres to its core values of non-violent direct action, there are several prominent examples of activists attracting harsh treatment from authorities over the last few years alone. During the Climate conference in Copenhagen in December 2009 for example, four Greenpeace activists were held for 20 days in preventive detention for gate-crashing a banquet held by the Danish Queen and unfurling banners. This reaction by the Danish justice system to the “Red Carpet Four” was a particularly brutal and intimidating act considering the peaceful nature of the activity.

Released after being held in jail for 3 weeks over the Christmas holidays. They are awaiting trial.

More than a year earlier on the other side of the globe, Junichi Sato and Toru Suzuki, two anti-whaling activists were subject to a similar case of arbitrary detention. The two intercepted a box of whale meat, embezzled from the taxpayer-funded whaling programme, and handed it in to the public prosecutor as proof of the illegal trade. Remarkably, it was them and not the whale meat traffickers who were arrested. They were held for 26 days – 23 of which were without charge – before being charged with trespass and theft, and put on trial by a justice system that refuses to investigate the whale meat embezzlement.

In both cases, there is no justification for such extended periods of detention, especially since Greenpeace and the activists involved cooperated honestly and willingly with the investigations at all times. In the case of the Tokyo Two, as Sato and Suzuki are known, the fact that after two years they are still defending themselves in court is particularly unjustifiable.

What is of particular concern in these cases is that both Denmark and Japan are first world democracies, which have signed and ratified the United Nations’ International Covenant on Civil and Political Rights (ICCPR). Based on the Universal Declaration of Human Rights, the ICCPR is a significant means of ensuring that basic human rights are respected and ensured by all parties. Long, arbitrary detention of activists not only constitutes a violation of the ICCPR, but it also creates what the European Court of Human Rights describes as a ‘chilling effect’, in that the fear of repercussions from authorities works to discourage further peaceful dissent that is essential to a free and open society.

The Red Carpet Four and the Tokyo Two are all facing jail sentences, highlighting the growing tendency of authorities to resort to criminal law in a quick and disproportionate manner. This is deeply concerning, as it is a sign of justice systems being used as tools to rein in freedom of expression and the political liberty of citizens.

It may have been 30 years since Japan ratified the ICCPR, but the UN Human Rights Committee has repeatedly called on it, most recently in 2008, to improve the situation in relation to human rights across 26 different categories, including freedom of expression.

The Tokyo Two case provides a clear sign that the Japanese authorities are not living up to Japan’s obligations under the ICCPR, but what is equally concerning is that neither are their fellow signatories. All governments that have ratified the ICCPR must ensure that its principles are upheld, not only in their own country, but universally. It is an international treaty and the defence of human rights is an international obligation. It is unacceptable to simply say ‘not my country, not my problem.’

The severe reactions by police and legal systems against the Red Carpet Four and the Tokyo Two are flagrant violations of freedom of expression and the right to peaceful protest, rights guaranteed by the European and International Conventions on Human Rights. These cases stand as a warning to everyone of what the future may hold if governments are allowed to simply ignore their obligations and disrespect the fundamental rights of citizens and NGOs whose intentions are to contribute to a better world for all.

Dirk Voorhoof is a Professor of Media Law and Freedom of Expression at Ghent University, Belgium and Copenhagen University, Denmark.

Serge Gutwirth is a Professor of Human Rights at the University of Brussels, Belgium